The intersection of criminal law and immigration law

Symposium: Only Defense Attorneys can Raise the Competency Bar

I can remember where I was sixteen years ago when the Antiterrorism and Effective Death Penalty Act and the Illegal Immigration and Immigrant Responsibility Act went into effect. I was a public defender (PD) in Chicago. I had only been a PD for a little over a year. I was assigned to one of the three domestic violence courtrooms; a courtroom where the majority of the defendants were Spanish speaking non-citizens because I was one of the few Spanish speaking PDs in an office of 625 attorneys. Looking back, it was this moment in my life, that for better or worse, sealed my fate. I have experienced the hardship caused by the intersection between immigration and criminal law on non-citizen defendants as a public defender, an immigration attorney and have tried to bring it the attention it deserves as a scholar and an academic.

So, for sixteen years, I have known that to competently represent my non-citizen client, I had the obligation to advise my client on the immigration consequences of a conviction. For sixteen years, I saw others also know the importance of this advice and the consequences of their clients’ guilty pleas, but I saw many skip the step anyway. The reasons were no different than what we heard in the past and hear in our present: defense attorneys are overworked and underpaid, the system doesn’t allow for the luxury, immigration law is too complicated, it has no place in the criminal justice system, etc.

Chaidez v. United States will decide whether Padilla v. Kentucky, 130 S. Ct. 1473 (2010), applies to federal cases that were pending on collateral review at the time of the decision which alleged Sixth Amendment violations. The Court will also decide whether Teague v. Lane’s analysis is the proper test when deciding whether a rule is subject to retroactive application in federal cases. 489 U.S. 288 (1989). These questions are interesting and will decide the fate of many in the past and in the future.

However, what I find more interesting is the continued belief that the Court and Sixth Amendment jurisprudence answers and/or fixes our issues with the quality of counsel that indigent defendants receive. As Justice Stewart stated in 1960, before Betts v. Brady, 316 U.S. 455 (1942), was overturned by Gideon v. Wainwright, 372 U.S. 335 (1963), the right to competent counsel is up to the bar, the lower courts, and legislatures. I would probably go even further and state that competent counsel is up to defense counsel and their professional organizations.

Don’t misunderstand me. I firmly believe that the Court, at times, has forcibly brought due process rights to many who did not receive it based upon state legislatures and lower federal and state courts that refused to provide equal and just treatment to criminal defendants and others based upon race as well as other categories of individuals.
However, we also know that the truth is that you can bring a horse to water but you cannot make him drink. In other words, you can change the law but if society and those in positions of power do not embrace the new landscape, change is difficult to obtain.

We in the criminal justice system see it every day. In fact, as we reflect on the upcoming 50th anniversary of Gideon, we know this to be painfully true. Even then, pragmatic commentators discussed the issues that even a favorable ruling in Gideon would not solve: monetary constraints on implementation; need for counsel in misdemeanor cases and on appeal; need for investigators, experts, psychiatrists; and general ability to ensure counsel is competent. This can only be done with an overall belief from society and the members of the criminal justice system that criminal defendants deserve a just and fair trial.

Over the last 50 years, we have seen Sixth Amendment jurisprudence affirm convictions when defense counsel was drunk, asleep, and absent from the courtroom during trial. We look to the courts for redress and fault the decisions that fail to admonish and fix the wrong. But the reality is that neither the lower courts nor the Supreme Court are meant to play that role. We, those on the ground, were put there for that purpose. When looking at the past, we realize that we are the driving forces to change and will always be. For example, the Court is hailed for Gideon. However, those on the ground were already developing the right to counsel throughout the country. In fact, at the time of Gideon’s hearing, twenty-one states had already enacted a right to counsel for indigent defendants in state cases and twenty-three states had written an amicus brief in support of Gideon.

In Padilla, while the majority of lower federal and state courts believed that there was not a duty to advise as to the immigration consequences of a criminal conviction, the tide was already changing to bring it up to date with societal beliefs: five courts believed there was a duty; seventeen state courts believed that misadvise could be held to be a Sixth Amendment violation; state legislatures demanded advice be given by the court before a plea; and the ABA Standards for Criminal Justice stressed the need for attorneys to give such advice. In fact, in INS v. St. Cyr, 533 U.S. 289 (2001), the Court itself, in dicta eleven years ago, stated that competent attorneys would advise clients of immigration consequences.

And Chaidez is no different. While Ms. Chaidez was not admonished by her counsel, both federal defense attorneys as well as federal prosecutors believe that Chaidez should be retroactively applied.

Therefore, while the Court may give its blessing and forcibly move a few of the stragglers up to current speed, ensuring competent counsel as the law and professional norms dictate remains the question. Therefore, no matter what the decision is in Chaidez, the future will still demand counsel advise on the many issues important to the client, whether defined as collateral or direct. So, the bigger question is what we must do to ensure that all defendants have competent counsel. We have the opportunity to move forward in a positive way. Let us embrace this challenge.

Yolanda Vázquez is an Assistant Professor of Law at the University of Cincinnati College of Law where she teaches immigration, crimmigration, and criminal procedure. Prior to entering academia, she was a public defender at the Cook County Public Defenders Office in Chicago and the Public Defenders Service for the District of Columbia. She was part of Mr. Padilla’s litigation team in Padilla v. Kentucky and the recipient of the 2011 Jack Wasserman Memorial Award for excellence in litigation in the field of immigration law from the American Immigration Lawyers Association for her work on the case.

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